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In Re Applications of GRENCO, INC., GREENWOOD, S.C. For Renewal of License of Stations WCRS and WCRS-FM, Greenwood, S.C. and RADIO GREENWOOD, INC., GREENWOOD, S.C.

For Renewal of License of Station WGSW, Greenwood, S.C.


Docket No. 19176 Files Nos. BR-1137, BRH-1674;

Docket No. 19177 File No. BR-2821




39 F.C.C.2d 732




February 23, 1973 Released


 Adopted February 14, 1973 







 [*732]  1.  This proceeding involves applications filed by Grenco Inc. for renewal of its licenses for radio stations WCRS and WCRS-FM, Greenwood, South Carolina, and by Radio Greenwood, Inc., for renewal of its license for radio station WGSW, Greenwood.  The conduct with which we are here primarily concerned arose out of and in connection with applications for mutually exclusive facilities filed by United Community Enterprises, Inc. (United) for a standard broadcast station at Greenwood n1 and by Saluda Broadcasting Company, Inc. (SBC), for facilities at Saluda, South Carolina.  In the consolidated proceeding in Docket Nos. 18503 and 18504 involving these applications an issue was designated to explore all the facts and circumstances surrounding the preparation and filing of the SBC application for the purpose of ascertaining whether the SBC application was in fact a strike application; i.e. whether its principal or incidental purpose was to delay or impede the establishment of a new standard broadcast facility in Greenwood.  n2 Grenco and Radio Greenwood were made parties to  [*733]  that proceeding because of their alleged support of the SBC application.  Subsequently, before resolution of the strike issue, a petition filed by SBC requesting the dismissal of its application was granted.  The dismissal left the strike issue unresolved and accordingly, in an Order, 28 FCC 2d 166, released March 25, 1971, we designated Grenco's and Radio Greenwood's renewal applications for hearing on issues to determine if either of the licensees had participated in or otherwise supported a strike application by SBC for the purpose of obstructing or impeding United's application. 

n1 In a decision adopted October 25, 1972, FCC 72R-308, the Review Board granted United's application.

n2 United Community Enterprises, Inc; et al., 18 FCC 2d 555 (1969).

2.  In an Initial Decision, FCC 72D-19, released March 14, 1972, Chief Administrative Law Judge Arthur Gladstone absolved Grenco of any wrongdoing with respect to the strike application issue and granted its renewal applications.  No exceptions have been taken to that aspect of his decision and it will be affirmed without further discussion in this decision.  However, the Presiding Judge resolved the strike issue adversely to Radio Greenwood although the found no evidence of wrongdoing on the part of SBC or its principals.  Rather, he concluded that Radio Greenwood had "embraced this application as a vehicle to launch an effort to block United * * * [and] that he used the SBC transaction as his own strike vehicle, entirely independent of the actions or motivations of the SBC principals" (emphasis as in original).  He further found that George Cook, Radio Greenwood's 25 percent stockholder and general manager, "seriously and substantially perjured himself in respect to material matters testified to in this proceeding." Noting that a character issue against Cook had not been designated for hearing in this proceeding, the Presiding Judge urged that, as a matter of law, we adopt a policy that there is "an implicit character issue for consideration in respect to the truth and veracity of every witness who is a principal, or a person under the control of a principal, in a hearing case." The Judge denied Radio Greenwood's renewal application.

3.  Exceptions to the Initial Decision and a supporting brief were filed by Radio Greenwood.  The Broadcast Bureau filed a statement in support of the Initial Decision.  Reply pleadings were filed by the Bureau, United, and Radio Greenwood.  In a Memorandum Opinion and Order, FFC 72-939, we scheduled this proceeding for oral argument on the exceptions.  Therein we also called attention to the Presiding Judge's finding of perjury and we directed the parties to include in their oral presentation a discussion of a number of questions raised by that finding.  n3 The Commission heard oral argument in this case on January 3, 1973.  The Judge's findings of fact will be adopted  [*734]  except as modified by our decision herein and our rulings on Radio Greenwood's exceptions. 

n3 The parties were asked to address themselves to the following questions:

(a) Whether the evidence of record establishes that the principals of Radio Greenwood, Inc., or any of them, knowingly and willfully gave false testimony as to material matters at the hearing of this docketed proceeding.

(b) Whether the Commission is precluded as a matter of law from considering whether Radio Greenwood, Inc. possesses the requisite character qualifications to continue as a licensee of a broadcast facility unless a character issue is designated and a further evidentiary hearing is held with respect thereto; or, if not so precluded, whether a further evidentiary hearing would serve any useful purpose.

(c) Whether, on the basis of the evidence presently of record, Radio Greenwood, Inc. possesses the requisite character qualifications to continue as a Commission licensee.

(d) Whether, in view of all of the evidence of record, a grant of the application for renewal of license of Station WGSW filed by Radio Greenwood, Inc. would serve the public interest, convenience and necessity.

4.  Considering first the strike issue against Radio Greenwood, we conclude that the Presiding Judge erred in resolving this issue adversely to the renewal applicant.  Our designation order explained that in order to be a "strike" application a principal or incidental motive of its filing "must be to obstruct or delay another application" and we specified as guidelines in making a determination the following: (1) the timing of the application, (2) the economic and competitive benefit occurring from the application, (3) the good faith of the applicant, and (4) questions concerning a frequency study.  Since the SBC application was filed approximately 2 months after that of United and it would at least delay the commencement of a new competing facility in the Greenwood market, guidelines (1) and (2) were satisfied.  However, as to guidelines (3) and (4), there is not only an absence of evidentiary support for a conclusion that the SBC proposal was a strike application, but the findings of fact adopted by the Presiding Judge preclude such a conclusion.

5.  The undisputed evidence of record established that the initial steps looking to the establishment of a new standard broadcast station at Saluda were taken by James W. Warren, who was then employed at WGSW as Radio Greenwood's engineer, and Ted B. Wyndham, a Greenwood lawyer.  In October, 1966, Cook, after consulting with communications counsel, advised Warren that he must either leave his employment at WGSW or withdraw from further participation in the Saluda proposal.  Warren chose to withdraw from the Saluda application and one C. Bruce Barksdale was substituted.  The Saluda application with Wyndham and Barksdale as principals was filed on November 16, 1966.  With respect to motives and intentions of the participants in the Saluda proposal, the Presiding Judge affirmatively found that Warren and Wyndham had "conceived a bona fide intention and plan to establish a broadcast facility in Saluda in late 1965 or early 1966"; that no principal of SBC was motivated by a desire to block United's application; and that, in fact, the "inception and execution of that plan contemporaneously with the activities of United -- was purely coincidental." Furthermore, the Judge found no significant evidence of record that either Cook or any other stockholder of Radio Greenwood had contributed money, services or time to the preparation or prosecution of the Saluda proposal.

6.  In order to convert the bona fide application by the principals of SBC into a strike application by Radio Greenwood, the Presiding Judge asserted that our guidelines "are neither applicable nor pertinent * * * [because] Cook publicly avowed that his interest in the application was in the context of a strike application" (Emphasis as in original).  This determination was predicated upon findings that Cook had evidenced a desire and intent to use the SBC application to his own advantage in order to impede United's application by: (a) seeking to enlist Dan Crosland, Grenco's manager, as an ally in an attempt to stop United; and (b) offering to reimburse Mullinax and Davenport for their expenses if they would withdraw the United application, and  [*735]  threatening to obstruct United's application when the offer was refused.  In further support of his conclusion that Cook had "embraced" the SBC application "as his own strike vehicle," the Presiding Judge took into consideration the continued employment of Warren as chief engineer at WGSW during the period that he was engaged in the preparation of the SBC application.  Thus, considerable significance was attached to Cook's failure to present Warren with the alternative between his employment and SBC "earlier in the game, i.e. as soon as he became aware of the potential conflict between Saluda and United early in 1966." As previously noted, this ultimatum was not delivered to Warren until October, 1966, after the United application had been filed and Cook had been advised by communications counsel to do so.  While recognizing that the SBC application might have been filed irrespective of when Cook spoke to Warren, the Judge considered that the failure to take earlier action detracted from the weight to be accorded Cook's claim of good faith and his denial of participation in a strike situation and, together with his "utterances concerning his motives and intent in respect to the Saluda applicant's activities, is sufficient to fix upon him the responsibility for encouraging and fostering what was, for him, a strike application" (emphasis as in the original).

7.  The flaw in the logic of the Initial Decision is the failure to bridge the gap between mere desire and the support or participation in the preparation and filing of an application which are essential elements of a "strike" charge.  Accepting the Judge's findings, there is no significant evidence of record that Cook or any other stockholder of Radio Greenwood committed any overt act which could be interpreted as support, encouragement, or participation in the SBC application or that any stockholder of Radio Greenwood contributed money, services or time to the preparation or prosecution of the SBC application which increased the likelihood of its success or served to delay the grant of United's application.  With respect to Warren, who was an employee but not a stockholder of Radio Greenwood, the Judge found that he had a bona fide desire to own his own station and he expressly absolved him of any wrongdoing.  In our view, even assuming that Cook had the desire to impede and obstruct the United application and welcomed the SBC filing, it cannot be held that Radio Greenwood -- the principals of which filed no application -- supported or otherwise participated in the preparation of a strike application absent a showing of some overt act in furtherance thereof or of the failure to perform some affirmative obligation which reasonably could be construed as supporting the strike application.

8.  As for Cook's failure to require Warren either to resign or withdraw from the Saluda proposal at an earlier time, little if any decisional weight may be accorded to this finding of delay.  While prudence may have dictated that Cook act more quickly -- again accepting the Judge's finding that he became aware of the potential conflict between SBC and United early in 1966 -- we are not persuaded that Cook may be charged with having delayed in the performance of an affirmative obligation merely because he did not act sooner.  Until United's application was filed there was no pending application with which the Saluda proposal would be in conflict, and Warren's association  [*736]  with Radio Greenwood was a significant factor only because of this potential conflict.  In the circumstances of this case where Warren was acting in good faith and the principals of Radio Greenwood committed no overt act in furtherance of the preparation or prosecution of the Saluda proposal, we are not prepared to hold that an adverse inference is warranted because Cook's discussion with Warren did not take place until after the actual filing of the United application.  In this connection we also note that Cook had reason to believe Warren and Wyndham would not proceed with the SBC application after it appeared that a comparative hearing would be necessary because of the resultant financial strain.  Of decisive significance, in our view, is the fact that when it became apparent that Warren and Wyndham intended to proceed with the application and immediately upon receiving advice from communications counsel that such action was advisable, Cook notified Warren that he must either resign his employment or withdraw from SBC.  We conclude that Cook did not act unreasonably and that there is insufficient evidence of record to sustain a finding that Radio Greenwood supported or participated in the filing of a strike application.

9.  Next we shall consider: (a) whether in the disposition of this case we may take into account any false swearing by Cook at the hearing in the absence of a character issue; and if we may, (b) whether the evidence of record is sufficient to support a conclusion that Cook, as a principal of Radio Greenwood, lacks the requisite character qualifications to continue as a licensee of the Commission.

10.  On issue (a) above, the Courts and the Commission have consistently held that false statements in response to Commission inquiries and in the course of the hearing process are, in and of themselves, of substantial significance.  See Nick J. Chaconas, 28 FCC 2d 231, 233 (1971). Complete candor from Commission licensees as to matters under investigation may be demanded and is expected.  FCC v. WOKO, Inc., 329 U.S. 223 (1946). While issues are designated to place the licensee on notice of the charges which he will be required to meet at the hearing, notice to a renewal applicant that he must testify truthfully and not conceal material information is superfluous.  Taking an oath serves that purpose and no unfairness results in holding a renewal applicant to have knowingly assumed the risk of an adverse determination as to its character qualifications when a principal testifies falsely at the hearing.

11.  As to issue (b), the matter is a most difficult and close one.  If this were a tort trial, and it was necessary in order to resolve the issue of tort liability to decide between the testimony of Cook on the one hand and Mullinax, Davenport and Crosland on the other hand, we would agree with the conclusion of the Chief Administrative Law Judge to go with the latter testimony.  But that is not the type of issue before us.  Rather, it is whether we should find that Cook deliberately lied in his testimony to this agency and on that basis lacks the requisite character to be a licensee.  What is involved, therefore, is the integrity of the Commission's processes -- that it must be able to rely on candor and honest dealing from its licensees.  FCC v. WOKO, Inc., supra. But while we have no hesitancy in resolving the issue (unlike the conflict  [*737]  issue in, say, In Re Complaints Covering CBS Program "Hunger in America", 20 FCC 2d 143 (1969)), it behooves us, of course, to do so with full awareness of the drastic consequences of an adverse ruling.  Taking into account that consideration and the nature of the record evidence here involved, including the difficulty of remembering fully conversations that occurred three to five years before the testimony, we are inclined not to find deliberate lying (perjury) by Cook.  Rather we believe there occurred a faulty shading of recollection -- an attempt to recall long past conversations where the consequences may have unconsciously influenced Cook's recollection in a manner favorable to himself.

12.  We think that this effort -- perhaps understandable human nature in the circumstances and reflecting adversely on Cook -- cannot be said to be deliberate falsehood (or perjury), with the degree of certainty that we believe is reasonably called for with respect to a finding of this nature.  We stress that our holding is based on the particular facts of this case, and does not represent in any way a retreat from the important policy of WOKO that we cannot temporize with deliberate deception of the Commission.  No matter how unblemished the reputation of the principal in the community, no one is allowed "one bite" at the apple of deceit.  We believe that by this time the message has been received by broadcast licensees that a station can get into greater and indeed the most difficulty by a course of deception or lack of candor when an issue is raised.  See, e.g., Continental Broadcasting, Inc., 15 FCC 2d 120 (1968), reconsideration denied 17 FCC 2d 485 (1969), affirmed 142 U.S. App. D.C. 70, 439 F. 2d 580 (1971), cert. denied, 403 U.S. 905 (1971); Palmetto Broadcasting Co. (WDKD), 33 FCC 250 (1962), reconsideration denied 34 FCC 101 (1963), affirmed sub nom.  E. G. Robinson, Jr. v. FCC, 118 U.S. App. D.C.  144, 334 F 2d 534 (1964), cert. denied 85 S. Ct. 84 (1964); Brandywine -- Main Line Radio, Inc., 24 FCC 2d 18, (1970) reconsideration denied 27 FCC 2d 565 (1971), affirmed U.S. App. D.C., Case No. 71-1181, September 25, 1972, rehearing denied December 4, 1972.  In short, our judgment here is strictly a factual one -- that while it is a close question, it is appropriate to hold back from the ultimate adverse finding on the particular record before us.

13.  Accordingly, IT IS ORDERED, That the applications of Grenco, Inc. for renewal of its licenses for Stations WCRS and WCRS-FM, and of Radio Greenwood, Inc. for renewal of its license for Station WGSW, all at Greenwood, South Carolina, ARE GRANTED; and

14.  IT IS FURTHER ORDERED, That the Motion to Correct Transcript, filed January 11, 1973, by Radio Greenwood, Inc. IS GRANTED.







Today, after a two-year fact-finding proceeding, the Federal Communications Commission dismisses the facts found by its Chief Administrative Law Judge and supported by its staff, and grants Radio  [*740]  Greenwood, Inc.'s application to renew the license for WGSW, Greenwood, South Carolina.  I dissent because the record clearly indicates that George Cook, one of Radio Greenwood's principal stockholders, misrepresented the facts to this Commission.

In March, 1971, we designated Radio Greenwood's license renewal application for hearing to determine whether Mr. Cook had participated in the filing of a strike application (application of Saluda Broadcasting Co. for facilities at Saluda, South Carolina) -- an application designed solely for the purposes of impeding the establishment (by United Community Enterprises) of a new broadcast facility in Greenwood South Carolina.  In his initial decision, the Chief Administrative Law Judge concluded that while Mr. Cook had not personally participated in the filing of the Saluda Broadcasting application, he had "embraced" that application and had, as a result, used it as a vehicle to try to block the establishment of a competing radio station in Greenwood.  The Judge also found that Mr. Cook had lied during the hearing in an attempt to avoid an adverse determination with respect to the strike issue.

I agree with the majority that, as a matter of law, Mr. Cook's conduct with respect to the Saluda application does not inculpate Radio Greenwood in the filing of an unlawful strike application (see Majority opinion at 4-6).  I also agree that while we did not designate the misrepresentation question for hearing -- because the alleged misrepresentations by Cook did not take place until after the hearing had begun -- that question is a proper one for consideration at this time.  (See Majority opinion at 7.) However, I cannot agree with the majority's conclusion -- reversing the Chief Administrative Law Judge -- that the evidence is insufficient to support a finding of misrepresentation.

The Administrative Judge found that Mr. Cook had lied on two separate occasions during the hearing.  First, Cook denied that he had approached Mr. Dan Crosland, general manager of Grenco, Inc., licensee of two other Greenwood radio stations, with the suggestion that both Cook and Crosland attempt to thwart United's pending Greenwood application.  Mr. Crosland testified that Cook had made such a suggestion.  When Cook, who recalled numerous historical details, including the date of the meeting, denied the substance of the conversation as related by Crosland, the Administrative Judge informed Cook that there was a distinct difference between "not recalling" a conversation and "denying" that it ever took place.  Mr. Cook, nevertheless, denied the conversation, and the Judge -- who, unlike the majority, had the opportunity to examine the witnesses' demeanor first-hand -- believed Crosland.  The majority nevertheless attributes this discrepancy in testimony to Cook's "shady recollection" -- a conclusion which makes no sense on the present record.

The Judge next determined that Cook had lied when he denied the veracity of an affidavit filed by William Mullinax, a principal of United Community Enterprises.  In that affidavit, and also during the hearing, Mullinax stated that Cook had approached both Mullinax and John Davenport (another United official) and had attempted to buy them off in order to thwart the United Application.  Again, the Administrative  [*741]  Judge believed Mullinax, not Cook, and the majority, apparently realizing that there is no basis in the record for reversing this finding, again attributes Cook's false testimony to a "faulty shading of recollection."

There is simply no basis for such a conclusion.  Either Cook was deliberately lying during the hearing, or we must conclude that both Mullinax and Crosland perjured themselves.  The Administrative Judge chose the first conclusion, and there is nothing in the record to suggest that that decision is clearly -- or even slightly -- erroneous.  Since none of the witnesses claimed they could not remember the facts, the majority's suggestion to the contrary finds support, not in the record, but, rather, in the majority's desperate desire to avoid imposing the penalty which inevitably follows from a finding of misrepresentation.

The majority recognizes -- and, indeed, the law is crystal clear -- that deception or lack of candor before this Commission is grounds for the denial of a license renewal application.  Nick J. Chaconas, 28 FCC 2d 231, 233 (1971); Brandywine-Main Line Radio, Inc., 24 FCC 2d 18, 28-32 (1970); Continental Broadcasting Inc., 15 FCC 2d 120 (1968); WMOZ, Inc., 36 FCC 202 (1964); FCC v. WOKO, Inc., 329 U.S. 223 (1946). Our licensees have clear notice of this prohibition against deceit, and strict compliance is obviously crucial if we are to preserve the integrity of our process.  See, e.g., Nick J. Chaconas, supra.

Students of the FCC have discovered that this Commission is loath to invoke the severe sanctions of license revocation or renewal denial for any reason other than misrepresentation.  See, e.g., Abel, Clift and Weiss, "Station License Revocation and Denials of Renewals (1934-1969)," 14 Journal of Broadcasting, 411 (1970).  There the authors illustrate that in nearly every case where this Commission revoked a broadcast license or denied a renewal application, misrepresentation was a key issue.  Students of the FCC are also aware that it is normally the small, poorly represented broadcaster -- and not the large multiple owner -- who suffers most severely under our approach to misrepresentation.  See, e.g., Trans America Broadcasting Corp., 33 FCC 2d 596 (1972), where the majority, after designating one of a large broadcaster's renewal applications for hearing on, inter alia, misrepresentation issues, fought mightily to avoid finding such misrepresentation.  See also the Hearing Examiner's Initial Decision, 20 RR 2d 1095 at 1108-1109, where, in the face of heavy odds, the fact-finder struggled even harder to avoid the conclusion that the licensee had misrepresented itself to this Commission.

By today's decision, the majority illustrates that it will no longer engage in such unfair discrimination against the small station owner.  In so doing, however, the majority also reveals that whether a station be big or small, misrepresentation by its licensee will not result in the denial of a renewal application.

When we come to the point where we are no longer willing to ensure that our licensees exhibit honesty in proceedings before this Commission, then we are surely lost.

I dissent.





Exceptions to findings


A1, A2, A3, A4, A5, A6,

Denied.  The exceptions are not of


decisional significance,

A7, A8, A9, A10, A12,

particularly in light of our decision herein.

A13, A15, A16, A18,





Granted to the extent set forth in paragraph 8 of our decision as to Cook's obligation to require Warren to resign or withdraw from the SBC application. Denied in other respects as not decisionally significant.






Denied.  The exception is not of decisional significance. It is also a misstatement of law since it is not a prerequisite to a strike application that the applicant be financially qualified.






Denied.  Mullinax's denial was not under


oath, did not


adversely affect Cook, and was an attempt to main-


tain the confidentiality of a business decision.  It has


no bearing on Mullinax's veracity under oath in a


hearing proceeding.


Granted in part.  See our conclusion herein, that Cook


did not adopt SBC's application as a strike applica-


tion.  Denied insofar as Mullinax's notes are concerned


as not decisionally significant.


Denied.  No basis exists for the requested action.


Exceptions to failure


to make findings



Denied.  While Mullinax and Davenport


were aware of


Cook's antagonism, a finding that they were "Condi-


tioned to be suspicious" and that as a result any notes


taken would be suspect, is speculative.

B2, B3, B7, B8, B9,

Denied.  The requested findings


are not of decisional

B10, B11, B13, B14,

significance, particularly in


light of our decision

B16, B17, B18, B19,


B20, B21, B23, B25,


B26, B27, B28, B29,


B30, B32, B33, B34,


B35, B36, B37, B38,


B39, B40, B41, B42,


B43, B44, B45, B46,


B47, B48.



Denied.  The requested finding is not warranted by the


evidence of record nor is it of decisional significance.

B5, B6, B15

Denied.  The instant record does not support the re-


quested findings which are based on speculation.


Granted to the extent that the instant record does not support the finding of the Judge that Cook perjured himself.  Denied in other respects as not decisionally significant.





Granted to the extent set forth in paragraphs 11 and 12


of our decision.


Denied.  It does not follow that because Mullinax attempted to get Crosland to agree with his version of what occurred, that Mullinax was less than candid in preparing his notes and his testimony.






Granted.  The proposed finding indicates that the differences in testimony might be attributed to differences in recollection.






Exceptions to




C1, C4, C6, C7, C8, C9,

Denied.  The exceptions are not of decisional significance.


C10, C11, C12, C13,


C14(1), * C15, C17,


C18, C19, C21, C23,


C24, C25, C26, C28,


C30, C32.



Denied.  The conclusion is supported by the record.


Granted.  The record does not support a finding that


Cook was involved in a strike application.


Granted in part.  Even if true, the conclusion does not show acts supporting a strike application.  Otherwise, the exception is denied as not of decisional significance.




C14(2) *

Granted.  The discrepancies in testimony can be attributed to differences in recollection.



Denied.  The exception is speculative and not supported


by the evidence of record.


Granted.  The conclusion is speculative and not supported by the evidence of record.


C22, C37

Granted.  Cook was acting upon his attorney's advice


and under the circumstances of this case was not


obliged to deliver to Warren the ultimatum before


the filing of the applications became imminent.

C27, C29

Denied.  The exceptions are not of decisional




As our decision holds, however, while Cook may have


desired to capitalize on the SBC filing there is no


evidence that he actively supported or aided the filing.


Granted.  Cook acted on advice of counsel, and no adverse conclusion should be drawn from his failure to offer Warren the ultimatum concerning his participation in SBC earlier.





Granted.  The Administrative Law Judge improperly departed from the criteria for strike applications.  The differences in the testimony may be attributed to differences in recollection.





Granted.  The Judge relied on incorrect standards to deny Radio Greenwood's application.


C35, C36, C38, C40

Granted.  The record does not support the conclusion that Cook actively supported the SBC application or embraced it as a strike vehicle.





Granted.  There is insufficient basis for a finding of perjury since the discrepancies in the testimony may be attributed to differences in recollection.




Granted.  The record evidence does not warrant a conclusion that the renewal of Radio Greenwood's license is inconsistent with the public interest.





Exceptions to




D1, D2, D3, D4, D5, D6,

Denied.  The exceptions are not


of decisional significance.

D7, D8, D9, D10,


D11, D12, D13, D14,


D15, D16, D17, D18,





* There are two exceptions numbered C14.

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